Florida Senate - 2022 CS for CS for SB 692
By the Committees on Rules; and Criminal Justice; and Senators
Stewart and Harrell
595-03057-22 2022692c2
1 A bill to be entitled
2 An act relating to sexual offenses; amending s.
3 90.404, F.S.; providing that substantial similarity is
4 not required for the admissibility of certain evidence
5 in a criminal case in which the defendant is charged
6 with a sexual offense; amending s. 365.161, F.S.;
7 revising the definitions of the terms “sexual battery”
8 and “sexual bestiality”; amending s. 491.0112, F.S.;
9 revising the definition of the term “sexual
10 misconduct”; amending s. 775.0847, F.S.; revising the
11 definitions of the terms “sexual battery” and “sexual
12 bestiality”; amending s. 775.15, F.S.; providing a
13 time limitation for the prosecution of specified
14 sexual battery offenses; providing applicability;
15 amending s. 794.011, F.S.; defining the term “female
16 genitals”; revising the definition of the term “sexual
17 battery”; providing that a person who threatens to use
18 actual physical force likely to cause serious bodily
19 injury or death while committing specified sexual
20 battery offenses commits a life felony; amending ss.
21 794.05, 796.07, 800.04, and 825.1025, F.S.; revising
22 the definition of the term “sexual activity”; amending
23 ss. 827.071 and 847.001, F.S.; revising the
24 definitions of the terms “sexual battery” and “sexual
25 bestiality”; amending s. 872.06, F.S.; revising the
26 definition of the term “sexual abuse”; amending s.
27 944.35, F.S.; revising the definition of the term
28 “sexual misconduct”; amending s. 951.27, F.S.;
29 requiring that HIV test results performed on inmates
30 arrested for sexual offenses involving female genital
31 penetration be disclosed under certain circumstances;
32 amending ss. 395.0197, 415.102, and 847.0141, F.S.;
33 conforming cross-references; providing an effective
34 date.
35
36 Be It Enacted by the Legislature of the State of Florida:
37
38 Section 1. Paragraph (c) of subsection (2) of section
39 90.404, Florida Statutes, is amended to read:
40 90.404 Character evidence; when admissible.—
41 (2) OTHER CRIMES, WRONGS, OR ACTS.—
42 (c)1. In a criminal case in which the defendant is charged
43 with a sexual offense, evidence of the defendant’s commission of
44 other crimes, wrongs, or acts involving a sexual offense is
45 admissible and may be considered for its bearing on any matter
46 to which it is relevant.
47 2. For the purposes of this paragraph, the term “sexual
48 offense” means conduct proscribed by s. 787.025(2)(c), s.
49 787.06(3)(b), (d), (f), or (g), former s. 787.06(3)(h), s.
50 794.011, excluding s. 794.011(10), s. 794.05, former s. 796.03,
51 former s. 796.035, s. 825.1025(2)(b), s. 827.071, s.
52 847.0135(5), s. 847.0145, or s. 985.701(1).
53 3. Substantial similarity is not required for admission of
54 other crimes, wrongs, or acts when identity is not at issue.
55 Section 2. Paragraphs (d) and (e) of subsection (1) of
56 section 365.161, Florida Statutes, are amended to read:
57 365.161 Prohibition of certain obscene telephone
58 communications; penalty.—
59 (1) For purposes of this section, the term:
60 (d) “Sexual battery” means oral, anal, or female genital
61 vaginal penetration by, or union with, the sexual organ of
62 another or the anal or female genital vaginal penetration of
63 another by any other object.
64 (e) “Sexual bestiality” means any sexual act between a
65 person and an animal involving the sex organ of the one and the
66 mouth, anus, or female genitals vagina of the other.
67 Section 3. Paragraph (c) of subsection (4) of section
68 491.0112, Florida Statutes, is amended to read:
69 491.0112 Sexual misconduct by a psychotherapist;
70 penalties.—
71 (4) For the purposes of this section:
72 (c) “Sexual misconduct” means the oral, anal, or female
73 genital vaginal penetration of another by, or contact with, the
74 sexual organ of another or the anal or female genital vaginal
75 penetration of another by any object.
76 Section 4. Paragraphs (d) and (e) of subsection (1) of
77 section 775.0847, Florida Statutes, are amended to read:
78 775.0847 Possession or promotion of certain images of child
79 pornography; reclassification.—
80 (1) For purposes of this section:
81 (d) “Sexual battery” means oral, anal, or female genital
82 vaginal penetration by, or union with, the sexual organ of
83 another or the anal or female genital vaginal penetration of
84 another by any other object; however, sexual battery does not
85 include an act done for a bona fide medical purpose.
86 (e) “Sexual bestiality” means any sexual act, actual or
87 simulated, between a person and an animal involving the sex
88 organ of the one and the mouth, anus, or female genitals vagina
89 of the other.
90
91 For purposes of sentencing under chapter 921 and determining
92 incentive gain-time eligibility under chapter 944, a felony
93 offense that is reclassified under this section is ranked one
94 level above the ranking under s. 921.0022 or s. 921.0023 of the
95 offense committed.
96 Section 5. Subsection (21) is added to section 775.15,
97 Florida Statutes, to read:
98 775.15 Time limitations; general time limitations;
99 exceptions.—
100 (21) In addition to the time periods prescribed in this
101 section, a prosecution for sexual battery in violation of s.
102 794.011, where the victim was unaware of the sexual battery due
103 to the victim being mentally defective, mentally incapacitated,
104 or physically helpless, may be commenced within 1 year after the
105 date on which the victim obtains actual knowledge of the offense
106 or the date on which the offense is reported to law enforcement,
107 whichever occurs first. Any dissemination of a recording of such
108 offense before the victim obtains actual knowledge thereof or
109 before its confiscation by a law enforcement agency does not
110 affect any provision of this subsection. This subsection applies
111 to any offense that is not otherwise barred from prosecution on
112 or before October 1, 2022.
113 Section 6. Subsections (1), (3), and (8) of section
114 794.011, Florida Statutes, are amended to read:
115 794.011 Sexual battery.—
116 (1) As used in this chapter:
117 (a) “Consent” means intelligent, knowing, and voluntary
118 consent and does not include coerced submission. “Consent” shall
119 not be deemed or construed to mean the failure by the alleged
120 victim to offer physical resistance to the offender.
121 (b) “Female genitals” means the labia majora, labia minora,
122 clitoris, vulva, hymen, and vagina.
123 (c)(b) “Mentally defective” means a mental disease or
124 defect which renders a person temporarily or permanently
125 incapable of appraising the nature of his or her conduct.
126 (d)(c) “Mentally incapacitated” means temporarily incapable
127 of appraising or controlling a person’s own conduct due to the
128 influence of a narcotic, anesthetic, or intoxicating substance
129 administered without his or her consent or due to any other act
130 committed upon that person without his or her consent.
131 (e)(d) “Offender” means a person accused of a sexual
132 offense in violation of a provision of this chapter.
133 (f)(e) “Physically helpless” means unconscious, asleep, or
134 for any other reason physically unable to communicate
135 unwillingness to an act.
136 (h)(f) “Retaliation” includes, but is not limited to,
137 threats of future physical punishment, kidnapping, false
138 imprisonment or forcible confinement, or extortion.
139 (i)(g) “Serious personal injury” means great bodily harm or
140 pain, permanent disability, or permanent disfigurement.
141 (j)(h) “Sexual battery” means oral, anal, or female genital
142 vaginal penetration by, or union with, the sexual organ of
143 another or the anal or female genital vaginal penetration of
144 another by any other object; however, sexual battery does not
145 include an act done for a bona fide medical purpose.
146 (k)(i) “Victim” means a person who has been the object of a
147 sexual offense.
148 (g)(j) “Physically incapacitated” means bodily impaired or
149 handicapped and substantially limited in ability to resist or
150 flee.
151 (3) A person who commits sexual battery upon a person 12
152 years of age or older, without that person’s consent, and in the
153 process thereof:
154 (a) Uses or threatens to use a deadly weapon; or
155 (b) Uses or threatens to use actual physical force likely
156 to cause serious personal injury or death,
157
158 commits a life felony, punishable as provided in s. 775.082, s.
159 775.083, s. 775.084, or s. 794.0115.
160 (8) Without regard to the willingness or consent of the
161 victim, which is not a defense to prosecution under this
162 subsection, a person who is in a position of familial or
163 custodial authority to a person less than 18 years of age and
164 who:
165 (a) Solicits that person to engage in any act which would
166 constitute sexual battery under paragraph (1)(h) commits a
167 felony of the third degree, punishable as provided in s.
168 775.082, s. 775.083, or s. 775.084.
169 (b) Engages in any act with that person while the person is
170 12 years of age or older but younger than 18 years of age which
171 constitutes sexual battery under paragraph (1)(h) commits a
172 felony of the first degree, punishable by a term of years not
173 exceeding life or as provided in s. 775.082, s. 775.083, or s.
174 775.084.
175 (c) Engages in any act with that person while the person is
176 less than 12 years of age which constitutes sexual battery under
177 paragraph (1)(h), or in an attempt to commit sexual battery
178 injures the sexual organs of such person commits a capital or
179 life felony, punishable pursuant to subsection (2).
180 Section 7. Subsection (1) of section 794.05, Florida
181 Statutes, is amended to read:
182 794.05 Unlawful sexual activity with certain minors.—
183 (1) A person 24 years of age or older who engages in sexual
184 activity with a person 16 or 17 years of age commits a felony of
185 the second degree, punishable as provided in s. 775.082, s.
186 775.083, or s. 775.084. As used in this section, “sexual
187 activity” means oral, anal, or female genital vaginal
188 penetration by, or union with, the sexual organ of another or
189 the anal or female genital vaginal penetration of another by any
190 other object; however, sexual activity does not include an act
191 done for a bona fide medical purpose.
192 Section 8. Paragraph (d) of subsection (1) of section
193 796.07, Florida Statutes, is amended to read:
194 796.07 Prohibiting prostitution and related acts.—
195 (1) As used in this section:
196 (d) “Sexual activity” means oral, anal, or female genital
197 vaginal penetration by, or union with, the sexual organ of
198 another; anal or female genital vaginal penetration of another
199 by any other object; or the handling or fondling of the sexual
200 organ of another for the purpose of masturbation; however, the
201 term does not include acts done for bona fide medical purposes.
202 Section 9. Paragraph (a) of subsection (1) of section
203 800.04, Florida Statutes, is amended to read:
204 800.04 Lewd or lascivious offenses committed upon or in the
205 presence of persons less than 16 years of age.—
206 (1) DEFINITIONS.—As used in this section:
207 (a) “Sexual activity” means the oral, anal, or female
208 genital vaginal penetration by, or union with, the sexual organ
209 of another or the anal or female genital vaginal penetration of
210 another by any other object; however, sexual activity does not
211 include an act done for a bona fide medical purpose.
212 Section 10. Subsection (1) of section 825.1025, Florida
213 Statutes, is amended to read:
214 825.1025 Lewd or lascivious offenses committed upon or in
215 the presence of an elderly person or disabled person.—
216 (1) As used in this section, the term “sexual activity”
217 means the oral, anal, or female genital vaginal penetration by,
218 or union with, the sexual organ of another or the anal or female
219 genital vaginal penetration of another by any other object;
220 however, sexual activity does not include an act done for a bona
221 fide medical purpose.
222 Section 11. Paragraphs (f) and (g) of subsection (1) of
223 section 827.071, Florida Statutes, are amended to read:
224 827.071 Sexual performance by a child; penalties.—
225 (1) As used in this section, the following definitions
226 shall apply:
227 (f) “Sexual battery” means oral, anal, or female genital
228 vaginal penetration by, or union with, the sexual organ of
229 another or the anal or female genital vaginal penetration of
230 another by any other object; however, “sexual battery” does not
231 include an act done for a bona fide medical purpose.
232 (g) “Sexual bestiality” means any sexual act between a
233 person and an animal involving the sex organ of the one and the
234 mouth, anus, or female genitals vagina of the other.
235 Section 12. Subsections (14) and (15) of section 847.001,
236 Florida Statutes, are amended to read:
237 847.001 Definitions.—As used in this chapter, the term:
238 (14) “Sexual battery” means oral, anal, or female genital
239 vaginal penetration by, or union with, the sexual organ of
240 another or the anal or female genital vaginal penetration of
241 another by any other object; however, “sexual battery” does not
242 include an act done for a bona fide medical purpose.
243 (15) “Sexual bestiality” means any sexual act, actual or
244 simulated, between a person and an animal involving the sex
245 organ of the one and the mouth, anus, or female genitals vagina
246 of the other.
247 Section 13. Subsection (1) of section 872.06, Florida
248 Statutes, is amended to read:
249 872.06 Abuse of a dead human body; penalty.—
250 (1) As used in this section, the term “sexual abuse” means:
251 (a) Anal or female genital vaginal penetration of a dead
252 human body by the sexual organ of a person or by any other
253 object;
254 (b) Contact or union of the penis, female genitals vagina,
255 or anus of a person with the mouth, penis, female genitals
256 vagina, or anus of a dead human body; or
257 (c) Contact or union of a person’s mouth with the penis,
258 female genitals vagina, or anus of a dead human body.
259 Section 14. Paragraph (b) of subsection (3) of section
260 944.35, Florida Statutes, is amended to read:
261 944.35 Authorized use of force; malicious battery and
262 sexual misconduct prohibited; reporting required; penalties.—
263 (3)(b)1. As used in this paragraph, the term “sexual
264 misconduct” means the oral, anal, or female genital vaginal
265 penetration by, or union with, the sexual organ of another or
266 the anal or female genital vaginal penetration of another by any
267 other object, but does not include an act done for a bona fide
268 medical purpose or an internal search conducted in the lawful
269 performance of the employee’s duty.
270 2. Any employee of the department or a private correctional
271 facility as defined in s. 944.710 who engages in sexual
272 misconduct with an inmate or an offender supervised by the
273 department in the community, without committing the crime of
274 sexual battery, commits a felony of the third degree, punishable
275 as provided in s. 775.082, s. 775.083, or s. 775.084.
276 3. The consent of the inmate or offender supervised by the
277 department in the community to any act of sexual misconduct may
278 not be raised as a defense to a prosecution under this
279 paragraph.
280 4. This paragraph does not apply to any employee of the
281 department or any employee of a private correctional facility
282 who is legally married to an inmate or an offender supervised by
283 the department in the community, nor does it apply to any
284 employee who has no knowledge, and would have no reason to
285 believe, that the person with whom the employee has engaged in
286 sexual misconduct is an inmate or an offender under community
287 supervision of the department.
288 Section 15. Subsection (2) of section 951.27, Florida
289 Statutes, is amended to read:
290 951.27 Blood tests of inmates.—
291 (2) Except as otherwise provided in this subsection,
292 serologic blood test results obtained pursuant to subsection (1)
293 are confidential and exempt from the provisions of s. 119.07(1)
294 and s. 24(a), Art. I of the State Constitution. However, such
295 results may be provided to employees or officers of the sheriff
296 or chief correctional officer who are responsible for the
297 custody and care of the affected inmate and have a need to know
298 such information, and as provided in ss. 775.0877 and 960.003.
299 In addition, upon request of the victim or the victim’s legal
300 guardian, or the parent or legal guardian of the victim if the
301 victim is a minor, the results of any HIV test performed on an
302 inmate who has been arrested for any sexual offense involving
303 oral, anal, or female genital vaginal penetration by, or union
304 with, the sexual organ of another, must shall be disclosed to
305 the victim or the victim’s legal guardian, or to the parent or
306 legal guardian of the victim if the victim is a minor. In such
307 cases, the county or municipal detention facility shall furnish
308 the test results to the Department of Health, which is
309 responsible for disclosing the results to public health agencies
310 as provided in s. 775.0877 and to the victim or the victim’s
311 legal guardian, or the parent or legal guardian of the victim if
312 the victim is a minor, as provided in s. 960.003(3).
313 Section 16. Subsection (10) of section 395.0197, Florida
314 Statutes, is amended to read:
315 395.0197 Internal risk management program.—
316 (10) Any witness who witnessed or who possesses actual
317 knowledge of the act that is the basis of an allegation of
318 sexual abuse shall:
319 (a) Notify the local police; and
320 (b) Notify the hospital risk manager and the administrator.
321
322 For purposes of this subsection, “sexual abuse” means acts of a
323 sexual nature committed for the sexual gratification of anyone
324 upon, or in the presence of, a vulnerable adult, without the
325 vulnerable adult’s informed consent, or a minor. “Sexual abuse”
326 includes, but is not limited to, the acts defined in s.
327 794.011(1)(j) s. 794.011(1)(h), fondling, exposure of a
328 vulnerable adult’s or minor’s sexual organs, or the use of the
329 vulnerable adult or minor to solicit for or engage in
330 prostitution or sexual performance. “Sexual abuse” does not
331 include any act intended for a valid medical purpose or any act
332 which may reasonably be construed to be a normal caregiving
333 action.
334 Section 17. Subsection (26) of section 415.102, Florida
335 Statutes, is amended to read:
336 415.102 Definitions of terms used in ss. 415.101-415.113.
337 As used in ss. 415.101-415.113, the term:
338 (26) “Sexual abuse” means acts of a sexual nature committed
339 in the presence of a vulnerable adult without that person’s
340 informed consent. “Sexual abuse” includes, but is not limited
341 to, the acts defined in s. 794.011(1)(j) s. 794.011(1)(h),
342 fondling, exposure of a vulnerable adult’s sexual organs, or the
343 use of a vulnerable adult to solicit for or engage in
344 prostitution or sexual performance. “Sexual abuse” does not
345 include any act intended for a valid medical purpose or any act
346 that may reasonably be construed to be normal caregiving action
347 or appropriate display of affection.
348 Section 18. Subsection (1) of section 847.0141, Florida
349 Statutes, is amended to read:
350 847.0141 Sexting; prohibited acts; penalties.—
351 (1) A minor commits the offense of sexting if he or she
352 knowingly:
353 (a) Uses a computer, or any other device capable of
354 electronic data transmission or distribution, to transmit or
355 distribute to another minor any photograph or video of any
356 person which depicts nudity, as defined in s. 847.001(9), and is
357 harmful to minors, as those terms are defined in s. 847.001 s.
358 847.001(6).
359 (b) Possesses a photograph or video of any person that was
360 transmitted or distributed by another minor which depicts
361 nudity, as defined in s. 847.001(9), and is harmful to minors,
362 as those terms are defined in s. 847.001 s. 847.001(6). A minor
363 does not violate this paragraph if all of the following apply:
364 1. The minor did not solicit the photograph or video.
365 2. The minor took reasonable steps to report the photograph
366 or video to the minor’s legal guardian or to a school or law
367 enforcement official.
368 3. The minor did not transmit or distribute the photograph
369 or video to a third party.
370 Section 19. This act shall take effect October 1, 2022.